1810.

FORBES

against

since the establishment of our present Rules and Orders of Practice; and this will lead us to a more ATKINSON. extended consideration of the subject of pleading in general, than the case, under other circumstances, would call for.

LOGICAL, DISTINCT, and CONSISTENT PLEADING is essential to the right administration of Justice, and to facilitate the attainment of this important object, the several forms of pleadings, contained in the Appendix to the Rules and Orders, have been prescribed. The principles upon which these forms are founded, should be thoroughly understood, aud I shall avail myself of the opportunity now offered, to explain them generally, before I deliver the opi nion of the Court with respect to the particular points upon which we are to decide.

Every contested suit at law consists of the demande ou one side, and the defense, upon the other.

The term demande implies the representation, and the claim of redress, which the plaintiff, in any instance, or suit at law, makes against the defendant, for or by reason of the facts which constitute his cause of action; and a demande is therefore said to be "the exercise of a right of action." (a) The term defense on the other hand, implies all that the defendant offers, by way of opposition or resistance against the plaintiff's demande. (b)

The matters which constitute the demande, and the defense, in any case, are respectively set forth in the pleadings of the parties, which vary, according to the grounds upon which they are made, and the objects they are designed to attain. Pleading, therefore is the statement of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence, exhibited in writing in technical form. (a) 1. Pigeau. 33.

(b) 7 Pothier 4to. 14. Code Civile 5. Tit. Art. 1st. and 5th. Jud. M. S. S.

It

1810.

against

It is the mode of alleging that, which is afterwards to become in evidence the support of the party by FORBES whom it is alleged, (c) or, a simple negatur of that ATKINSON. which is alleged by an adversary; the former, being an affirmative, the latter, a negative pleading. (d)

An affirmative pleading consists of two parts, the libel and the conclusion. In the libel, (or narration as it is sometimes called) the facts which constitute the ground of the pleading, that is to say, the premisses, from which the conclusions in law are to follow, are alleged and setforth distinctly as to time, place, person, and circumstance; (e) without comment or argument of any kind. (f) And to the libel, which should contain all that is necessary to justify the conclusion and no more, is added the prayer of the pleader, in apt words, for that specific remedy or relief, to which, by law, the facts which he has libelled entitle him, and this is the conclusion. (9) A negative pleading, in like manner, consists of two parts; of a direct denegation of that to which it answers, and of the conclusion, which asks that relief or remedy to which the pleader will be by law. entitled, if that, which he denies, be not verified.

In the Law of England, it is a general rule in pleading, "That a mere prayer of judgment without pointing out the appropriate remedy, is sufficient, and that the facts being shewn, the Court,

66

66

66

ex officio, is bound to pronounce the proper judgment." (h) But the reverse of this rule is the principle of the law of Canada. With us the conclusions are held to be essential to the proceedings, (i) and must contain, à peine de nullité, all that the (c) 3 T. Rep. 159. Doug. 278.. (d) Hennecius in Pandectas, part 2. S. 32. Brown's Civil Law, V. I. p. 35...(e) 1. Pigeau 269. 270. I. Gauret, 4. Code Civile, Tit. 2. Art. 1. & Tit. 20 Art. 1. (f) 7th Pothier, 4to 55. Art. 4 c. 3. Code Civile Tit. 20 Art. 1. (g) Repertoire, Verbo, Conclure 8vo. V. 14. P. 77. (h) 4th East 502, 509. 5th. Ib. 270, 271. 1st. Chitty 243, 445. (i) 14 Vol. Repertoire 8vo. p. 77. Verbo. Conclure. Jud. M. S. S.

judg

1810. FORBES

against

judgment of the Court must comprehend. (k) For although the conclusions may by the Court be alATKINSON. lowed or rejected in toto, or modified and allowed in part, and rejected in part, (1) still what is omitted in the conclusions cannot be supplied by the Court, not even if it appears in substance in the body, or libel, of the pleading. (m)

The declaration is the first pleading in every case. It sets forth the facts which constitute the plaintiff's demande, and is always an affirmative pleading.

Pleas are the pleadings, which setforth the defense of the defendant, and these are sometimes negative, and sometimes affirmative. A negative plea denies the matters which constitute the ground or fonds of the plaintiff's demande, and does no more; but an affirmative plea alleges some new matter, which being proved, is of itself sufficient to authorise a judgment for the defendant, notwithstanding the matters which constitute the ground or fonds of the plaintiff's demande; and for the purposes of this distinction, the word defense is used in a second and limited sense; a negative plea being called a "défense au fonds," because it impeaches or denies the ground or fonds of the plaintiff's demande setforth in his declaration, in opposition to an affirmative plea which is called an exception, (from the latin excipere to exclude) because it does not impeach or deny the ground or fonds of the plaintiff's demande, setforth in his declaration, but alleges, and relies entirely upon, one or more new matters as cause why the plaintiff's suit should be delayed or dismissed, and hence the maxim Reus excipiendo fit actor. (nn)

(k) 14th vol. Repertoire 8vo. p. 78. Code Civile Tit. 2d. Art. Ist (2) 14. vol. Repertoire p. 78. and 17. Vol. p. 479 Verbo Demande. L. C. Denizart, Verbo Conclusions Vol. 5. p. 83. No. 2..... ....(m) 14 Vol. Repertoire, 8vo. p. 77. 78. 1. Pigeau, 399. 400.

(n) Henneccius Elementa Jur. Civ. p. 395. Tit. 13. Art. 1277. Henneccius in Pandectas part 2 S. 32. 7. Pothier, 4to. 14. De la Janneys, Vol. II. p. 406. Tit. 29. Art. 629. L. C. Denizart, Vol. 8. p. 166. Verbo, Exceptions, Sec. 1. No. 1. 1. Pigeau. 150. Jousse, idée de la Justice Civile Tit. 3. part. 2. Sec. 1. Art. 5, page 63. Erskiness Institutes, p. 663.

(nn) Repert. 8vo. Vol. 4. p. 363. Jud. M. S. S.

The

The only remaining pleadings permitted by the law of Canada, are Answers and Replications, the pleading which is put in by a plaintiff, in answer to an affirmative plea filed by a defendant being an answer; and the pleading, which is put in by a plaintiff, in reply to a negative plea, or by a defendant, in reply to a plaintiff's answer to an affirmative plea, being a Replication. (0)

Thus much being premised with respect to the pleadings which occur in the course of ordinary suits, the nature of each shall now be more particularly considered.

The déclaration is a specification of the matters that constitute the plaintiff's cause of action, an accurate and logical statement of his complaint or charge against the defendant, and of the remedy in law for which he demands judgment. In this pleading, the plaintiff is required, à peine de nullité, to narrate and libel distinctly, as to time, place, person, and circumstance, the several facts upon which he prosecutes, and which he intends to prove in evidence; (p) all of which he therefore offers "to ve"rify, prove and maintain when and as the Court "shall direct;" averring the whole "to be well "founded in fact and in law;" and praying by his conclusion, that the Court, under the authority of its jurisdiction, will "compel the defendant to appear," and, "to answer unto him the plaintiff, of

66

(i. e. concerning) the demande, contained in his de"claration," and will award to him the appropriate remedy in law, which he specifically sets forth and alleges to be the legal result of the premisses. (q)

By the King's writ or process ad respondendum, the defendant is summoned to appear and to answer to the demande of the plaintiff, contained in his de

(0) Prov. Ord. 25, Geo. 3. c. 2. s. 13.....(p) Code Civile. Tit. II. Art. 1. I. Gauret, 4. Repertoire, 2. Vol. 8vo. p. 4. Verbo ajournement, Jud. M. S. S. (q) Rules and Orders p. 233.

cla

1810.

FORBES

against ATKINSON.

1810.

FORBES against ATKINSON.

"claration;" (r) and if he appears, (to prevent a judgment against him by proceedings ex parte) he must answer, or shew, "that by law he is not bound to answer."

This constitutes the first great division in pleas; and as it would be contrary to law, to compel a defendant to answer to a demande, who is not bound by law to do so, and consequently what no Court lawfully can do; "whether he be or be not bound to answer ?" must necessarily be a preliminary inquiry in all cases, in which the defendant contends, "That he is not bound to answer." For which reasons, if he does contend, "That he is not by law bound to answer," he is required to file, in limine litis, his plea or pleas to this effect, without answering the demande; and from hence such pleas are sometimes called "preliminary pleas" (s) But as the principle allegation of every such plea is, "that "in this cause, the court of our Lord the King now "here, by law cannot proceed," (t) they are technically distinguished from pleas which answer the demande (and are thence called "pleas to the action") by the title of "fins de non procéder." (u).

A preliminary plea, or "Fin de non procéder," from its nature, cannot, in any case, be a negative plea. A negative plea necessarily takes issue upon the facts stated in the declaration, and the defendant, by such a plea, instead of shewing "that he is not by law bound to answer," would in fact answer the demande. As the defendant must therefore plead affirmatively, the matter on which he relies for the support of his averment ("that he is not by law bound to answer") all fins de non procéder are exceptions.

For the same reason, (that is, because they can

(r) Rules & orders, 191.... (s) Ib. S. 7. Art. 7. p. 68. (t) Ib. p. 234, 235....(v) L. C. Denizart Vol. 8. p 638. Verbo. Fins de non procéder, S. I....(u) Serpillon, p. 54. Note 2. Jousse Cod. Civ. Vol. 1. p. 182. L. C. Denizart, Vol. 8th. p. 638. Repertoire, Vol. 25, 8vo. p. 62. Jud. M. S. S.

not